FORMAL TENDER PROCEDURES
The following procedures apply when the agent requires that the sale of the subject property can only be awarded by the agent on behalf of the seller following competition by public tender. There are also certain selected tender which are exempt from public tender. Tendering is a process which can be followed and decided in a logical manner:
1. Is tender required? Yes
2. What tendering method should be adopted? Selected, open tendering or expression of interest?
Formal "open tender" as it is the most common method of selling property by formal tendering. Steps involved in the open tendering process:-
1. Prepare tender documents and contract
2. Advertise and prepare tender box
3. Advertise and distribute documents to interested parties/issue amendments.
4. Close tender
5. Opening Procedures of tender box
7. Report and Recommendation
7. Consideration by seller
8. Seller's determination
9. Advise successful tenderer and make arrangements for signing of contract
11. Advise unsuccessful tenderers
PREPARATION OF TENDER DOCUMENTS AND CONTRACT
The tender document must advise the tenderer of the sale requirements up to and including the time when the contract is formally executed including the criteria on which the assessment of tenders will be based. The contract/s regulate the relationship between the parties thereafter.
The tender documents should include:
a broad outline of the main features of the contract (summarised), and details of information which will enable the prospective contractor to make an informed commercial decision to lodge a tender.
a statement of tendering conditions
the name of the person who can supply information about the tender and contract and how the person can be contacted.
Annexed to the tender documents should be a copy of the proposed contract.
A list of tendering conditions which agent/seller considers appropriate and a pro-forma tender form are included.
As well as the mandatory requirements the agent may also decide to advertise the tender more widely as an extension to the marketing of the property. The main purpose of the advertisement is to notify the availability of documentation. Therefore, the advertisement should include the following elements:-
A brief description of the property being offered for sale (to be expanded on in the formal document).
When and where documents are available.
Invite interested parties to lodge tenders by the deadline in the advertisement.
The name of the person who can supply information and how that person can be contacted.
The day the advertisement first appears in the newspaper, the tender box should be prepared and placed on the agency's counter. It must be kept there whenever the office is open so that individuals may personally place their tender in the box up until the close of tenders. A copy of the ads should be retained on the file.
The deadline should be no sooner than 21 days after the date the advertisement first appears. The agent/seller may resolve to set an earlier deadline (no sooner than 7 days after advertisement) but should only be exceptional circumstances.
The agent/seller may also determine to extend a tender period after tenders are called, in circumstances that show that the deadline might not allow for meaningful tenders to be submitted. In order to facilitate notification to parties who have collected documents before the decision to extend the tender period is made, a list should be kept of those parties to whom the documents have been issued.
The tender period may be varied depending on the circumstances of the particular contract. It must be long enough to enable prospective buyers to become aware of the proposed sale, and to gather the necessary information to lodge a meaningful tender. Care needs to be taken when specifying a closing date that it does not fall on a public holiday, a Friday or the day before a holiday. Time of closing should be no later than 3.00 p.m. Regard should also be had when deciding on a closing date as to when a report on the tenders will be submitted to the seller and the availability of the seller to consider the report. Obviously it would not create a good image for an agent if tenders closed and could not be considered for 6 weeks due to the absence of the seller for whatever reason.
ENQUIRIES AND DISTRIBUTION OF TENDER DOCUMENTS
This should ideally be handled by the agent or one member of staff in order that prospective tenderers receive consistent advice. That person should be named in the advertisement and the tender documents. A complete listing of parties who have received tender documentation should be kept.
If an inquirer asks as to whom tender documents have been issued, the agent is under no obligation to divulge the information and in fact is prevented from doing so by privacy laws and a fiduciary duty to his/her principal.
The agent preferable with the seller should attend to tender opening.
When the tender closes, the agent/seller, or the agent in the company of at least 1 other person (preferably independent of the agency) must remove the envelopes from the tender box and open the envelopes in the presence of the seller or the other person.
A record is then made of the names of the parties who have submitted tenders and the apparent prices tendered. The agent/seller or designated person(s) should initial next to where the apparent amount appears on the tender form
The agent then prepares a list specifying in apparent order of those amounts, the names of the tenderers. It takes the form of a certificate from the agent. The tenders are then referred to the agent/sller for analysis and report.
Information contained in tenders and documents relating to them must be kept confidential as public information.
ANALYSIS OF TENDERS
During the course of analysis, certain anomalies may become apparent in tenders. Variations are possible to tenders prior to acceptance by the agent/seller. Variations may be made either at the request of agent/seller, or at the tenderer's request in reasonable circumstances, with agent/seller's approval. Any variation which substantially alters the original tender should be rejected. Variation should be limited to providing further information (by way of explanation or clarification) or correcting a mistake or anomaly in a tender.
The agent should have the authority of the seller to suggest to tenderers that variations may be needed, and to determine requests from tenderers to lodge variations.
The criteria by which tenders will need to be analysed would have been specified in the tender documentation which was previously supplied to all tenderers. The agent/seller is bound to apply these criteria in the analysis process.
As a matter of policy, a tender should not be considered unless formal tender documents are submitted.